# Opinion — Ex Parte Grossman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opinion
- **Published:** January 1, 1925
- **Citation:** 267 U.S. 87

## Text

88 OCTOBER TERM, 1924.
Statement of the Case. 267 U.S.

the Prohibition Law, is an “ offence against the United States,”
within the meaning of Article II, § 2, Cl. 1 of the Constitution
and pardonable by the President thereunder. P. 108.

2. Before our Revolution, the King of England had always exercised
the power to pardon criminal contempts, the pardon being effica-
tious in so far as punishment was imposed in the public interest, to
vindicate the authority of the King and Court (criminal contempt),
but not in so far as imposed to secure the rights of a suitor, (civil
contempt). P. 110. :

3. The like distinction between criminal and civil contempts is clearly
made in our law. P. 111.

4. The history of the pardon clause in the Constitutional Convention,
cited to show that the words “ offences against the United States ”
therein were intended, presumably, to distinguish between offences
against the General Government and offences against the States,
and not to narrow the scope of a pardon as known in the common
law. P. 112.

5. There is no substantial difference in this matter between the execu-
tive power of pardon in our Government and the King’s preroga-
tive. P. 113.

6. Nor does the ruling of this Court in United States v. Hudson 7
Cranch, 32, limiting the exercise of ordinary federal criminal juris-
diction to crimes defined by Congress, afford reason for confining
“ offences against the United States,” in the pardon clause, to statu-
tory crimes and misdemeanors. P. 114.

7. Construction of “ offences against the United States ” in the pardon
clause as including criminal contempts, accords with the ordinary
meaning of the words and is not inconsistent with other parts of
the Constitution where the term “ offence” and the narrower terms
“crimes” and “criminal prosecutions,” appear. Art. I, § 8;
Amendments V and VI. P. 115.

8. The power of the President to pardon criminal contempts is
sustained by long practice and acquiescence. P. 118.

9. The contention that to admit the power of the President to pardon
criminal contempts (not to interfere with coercive measures of the
courts to enforce the rights of suitors) would tend to destroy the
independence of the Judiciary and would violate the principle of
separation of the three departments of the Government, is con-
sidered and rejected. P. 119.

Rule in habeas corpus made absolute and prisoner discharged.

Habeas coryus, original in this Court, to try the consti-
tutionality of petitioner’s confinement notwithstanding a

EX PARTE GROSSMAN. 89
87 Argument for Petitioner.

pardon granted by the President. The petitioner was
found guilty by the District Court of having disobeyed a
temporary injunction, issued under the Prohibition Act,
forbidding illicit traffic in liquors on certain premises. He
was sentenced by the District Court to pay a fine and to
imprisonment for one year in the Chicago House of Cor-
rection—a judgment which was affirmed by the Circuit
Court of Appeals. 280 Fed. 683. The President issued a
pardon commuting the sentence to the fine, upon condi-
tion that the fine were paid; which was done. Having
been thereupon released from custody, the petitioner was
again committed by the District Court, upon the ground
that the pardon was ineffectual, 1 Fed. (2d) 941. He then
sought this writ of habeas corpus, directed to Graham, the
Superintendent of the House of Correction.

Mr. Louis J. Behan, with whom Mr. Robert A. Milroy
and Mr. Wiliam J. Corrigan were on the brief, for peti-
tioner.

I. The petitioner was convicted of criminal contempt.
Pino v. United States, 278 Fed. 479; McGovern v. United
States, 280 Fed. 73; Grossman v. United States, 1 Fed.
(2d) 941.

II. A criminal contempt is an offense against the United
States because:

(a) The courts have held it to be “ a specific criminal
offense.” In re Kearney, 7 Wheat. 38; New Orleans v.
N. Y. Mail 8. 8. Co., 20 Wall. 387; In re Swan, 150 U. 8S.
637; Fanshawe v. Tracy, 4 Biss. 490; Fischer v. Hayes,
6 Fed. 63; In re Ellerbee, 13 Fed. 530; United States v.
Berry, 24 Fed. 780; Kirk v. Milwaukee Dust Collector
Mfg. Co., 26 Fed. 501; Bullock Electric & Mfg. Co. v.
Westinghouse, 129 Fed. 105; United States v. Jacobi, 26
Fed. Cases, 564; In re Litchfield, 13 Fed. 863; In ré Acker,
66 Fed. 290; Passmore Williamson’s Case, 26 Pa. St. 9;
State ex rel. v. Sauvinet, 24 La. Ann. 119; Sharp v. State,

90 OCTOBER TERM, 1924.
Argument for Petitioner. 267 U.S.

102 Tenn. 9; In re Shull, 221 Mo. 623; Schwartz v. Supe-
rior Court, 111 Cal. 106; Lester v. People, 150 Ill. 408.

(b) In a criminal contempt, the defendant is presumed
to be innocent until guilt is proved beyond a reasonable
doubt. United States v. Jose, 63 Fed. 951; Michaelson v.
United States, 266 U. S. 42; Gompers v. Bucks Stove &
Range Co., 221 U. 8. 418; Jones v. United States, 209
Fed. 585; Oates v. United States, 233 Fed. 201; Kelly v.
United States, 250 Fed. 947; Galen v. United States, 250
Fed. 947; In re Cashman, 168 Fed. 1008; United States
v. Carroll, 147 Fed. 947.

(c) Prosecutions for criminal contempt are barred by
the statute of limitations. Gompers v. United States, 233
U.S. 604.

(d) In criminal contempt cases the provisions of the
Federal Penal Code with respect to removal, arrest and
bail are applicable. Castner v. Pocahontas, 117 Fed. 184;
United States v. Jacobi, 26 Fed. Cases 564, 566.

(e) Review of criminal contempt is the same as in
other criminal cases. Jn re Merchants Stock & Grain Co.,
223 U. S. 640; Gompers v. Bucks Stove & Range Co., 221
U. S. 418; In re Christensen Engineering Co., 194 U. S.

III. The authority of the President to grant pardon
for criminal contempt is sustained:
(a) By custom and usage prior to and at the time of

"(1898) ; ; Ez

ras ek aoe
= Beward ¥. Patterson, 1 Chan. 545; Madison’s De-

EX PARTE GROSSMAN. . 91
87 Argument for Petitioner.

bates of Federal Convention; Farrand’s Records of Fed-
eral C orivention, Vol. I and Vol. II; Madison’s Journal of
Federal Convention; The Federalist, Letter LXXIV
(Hamilton).

(b) By custom and use since the adoption of the Con-
stitution. 3 Op. A. G., 622; 4 Op. A. G., 458; 19 Op. A. G.,
476.

(c) By the broad terms in which the pardon power is
granted, and by the specific exception of impeachment
cases. See United States v. Wilson, 7 Peters 150; Ex
parte Wells, 18 How. 307; Ex parte Garland, 4 Wall. 333;
United States v. Klein, 13 Wall. 128; United States v.
Thomasson, 28 Fed. Cas. 82; 13 Corpus Juris 97; 29 Cyc.
1563; 6 Ruling Case Law, 540; 20 Ruling Case Law 537;
1 McClain Crim. L. (1897 Ed.) Sec. 9; 1 Bishop Crim.
Law (7th Ed.) Sec. 913; 1 Kent’s Comm, (14th Ed.) 343;
Story on Const., Vol. 3, Sec. 1488; Rawle. on Const. (2d
Ed.) 174; 7 Bacon’s Abridg., 405, (1845 Ed.); 2 Curtis
Hist. Const., 413; 2 Willoughby Const. 1270; Oswald on
Contempt (1911 Ed.) 3; 1 Jour. Crim. Law and Crimi-
nology 549; 43 Amer. Law Rev. 192; 49 Amer. Law Rev.
648; Ency. Britt., 11th Ed. “ Contempt ”; United States
v. Arrendondo, 6 Pet. 691; Bend v. Hoyt, 13 Pet. 263;
Arthur v. Cummings, 91 U.S. 362; Diehl v. Rogers, 169
Pa. St. 316.

(d) By adjudicated cases on power to pardon contempt.
Ex parte Fiske, 113 U.S. 713; Bessett v. Conkey, 194 U.S.
325; In re Mullee, Fed. Cas, No. 9911; In re Mason, 43
Fed. 510; Castner v. Pocahontas Collieries Co. 117 Fed
184; Butte & C. Co. v. Montana Ore Co., 158 Fed. 131; Ex
parte Hickey, 12 Miss. 751; State, ez rel. v. Sauvinet, 24
La. Ann. 119; In re Browne, 2 Colo. 553; Sharp v. State,
102 Tenn. 9.

The purpose of the contempt proceedings in the case at
bar was to assist in the administration of a public law,
criminal in its nature; the injunction was directed against
acts that were crimes and punishable as such, and the

92 -. OCTOBER TERM, 1924.
Argument for Respondent. 267 U.S.

violation of the injunction was punished, not primarily to
vindicate the authority of the court, nor to protect its
process of adjudication, but to stop the repetition of such
conduct as the legislative policy of the United States had
declared to be criminal. The reasons of policy that sup-
port executive pardons for crimes are as applicable to the
punishment of offenders by contempt proceedings as to
the punishment of offenders by ordinary criminal pro-
ceedings, whenever the purpose of the former is solely or
primarily to secure the enforcement of the criminal law.

It is no more a reflection upon the courts to recognize
the pardoning power in the President in a case of a
criminal contempt, than to recognize such power where
the criminal laws of the people enacted by the legislature
have been violated and the defendant is sentenced to im-
prisonment by the court. The right to punish for con-
tempt of court, cannot be superior to the rights of the
people, for all power in the last analysis is granted by and
comes from the people.

The reasons may be as potent for the granting of a par-
don when crime is punished by equity in contempt pro-

_ ceedings as when it is punished by a common law judge

after a conviction by a jury. That the executive should
have the power to pardon both classes of offenders seems
logical, consistent and socially desirable, nor does it seem
any greater blow to the prestige of the court, that the
executive should pardon a defendant’s commitment for
contempt than that he should remit his sentence for
crime—both being imposed for the same criminal act, and
perhaps imposed by the same judge sitting first in an
equity and tien in a criminal term of the court.

Mr. Amos C. Miller and Mr. F. Bruce Johnstone,
Special Assistants to the Attorney General, for respondent.

The natural and ordinarily understood meaning of the
words “ offences against the United States” does not
include contempts of court.

GRUYDRSIDY OE DENVER COLLEGE OE LAW LLBEAN |

EX PARTE GROSSMAN.
87 Argument for Respondent.

The terms “ offence” and “crime” are synonymous
and the term “ offence against the United States” means
the same as “offence against the laws of the United
States.” Since there are no common law crimes, those
terms mean offences denounced as such by the statutes of
the United States.

For definitions and instances of the use of the words
“crime” and “ offence” by courts and text writers see
United States v. Wilson, 7 Peters, 150; Moore v. People,
14 How. 13; United States v. Hudson, 7 Cranch 32;
United States v. Eaton, 144 U.S. 677; In re Chapman, 166
U. S. 661; The Laura, 114 U. 8. 411; Thomas v. United
States, 156 Fed. 897; In re Terry, 37 Fed. 649; United
States v. Boston, 273 Fed. 535, Commonwealth v. Brown,
107 Atl. (Pa.) 676; Dunson v. Baker, 80 So. (La.) 238;
State v. West, 42 Minn. 147; Cruthers v. State, 161 Ind.
139; Dominick v. Bowdoin, 44 Ga. 357; Kopp v. French,
102 N. Y. 583; Yates v. Lansing, 9 Johns. (N. Y.) 395;
10 Op. A. G. 452; People v. Seymour, 191 Ill. App. 381;
Black’s L. Dict. 2d Ed. 487; Stroud’s Judicial Dict. 2d Ed.
1318,

These cases disclose a common understanding, extend-
ing from (or near) the time of the adoption of the Federal
Constitution, that, except in those jurisdictions where
there are common law crimes, the word “ offence” in-
cludes those acts only which have been denounced as such
and made punishable by statute.

That contempts of court are “sui generis” and the
proceedings to punish them are “ neither civil actions nor
prosecutions for offences within the ordinary meaning of
those terms” is the doctrine of this Court. Bessette v.
Conkey Co. 194 U. S. 324; Eilenbecker v. District Court
134 U. 8. 31; Dunham v. United States, 289 Fed. 376;
Grain Company v. Board of Trade, 201 Fed. 20; Michael-
son v. United States, 266 U. S. 42.

While contempts of court have in some instances been
spoken of by this ‘Court as crimes, it is clear that such

94 OCTOBER TERM, 1924.
Argument for Respondent. 267 U.8.

classification was for some purpose of procedure only.
New Orleans v. Steamship Company, 20 Wall. 387.

If, as stated by Mr. Justice Holmes in the second
Gompers Case, contempts of court in England were crimes
or offences indictable and punishxble as such by the usual
criminal procedure, it is because the law of England, un-
like our federal law, recognized comm.n law crimes, pun>o
ishable as such. A contempt of court was not only an
offence against the court, it was equally an offence against
the King, like every other offence. See dissenting opinicn
in Ex parte We'le, 18 How. 307; State v. Magee Publish-
ing C'a., 29 New Mexico 455.

As said in Bessette v. Conkey, 194 U.S. 324, a contempt
proceeding is criminal in its nature, in that the party is
charged with doing something forbidden, and if found
guilty, is punished. ;

The ordinary classification of contempt as either civil
or criminal, can throw no light upon the question here
involved. This classification was first adopted, we be-
lieve, in the year 1831, in England. Wellesley v. Duke of
Beaufort, 2 Russ. & M. 639, 39 Eng. Rep. 538. It is an
artificial one made by the court for the purposes of pro-
cedure. It is held by this Court that the violation of a
mandatory order of court, punishable by imprisonment or
other penalty intended to be éoercive, is a civil contempt;
whereas, the violation of a prohibitive order of court, pun-
ishable by a fine or imprisonment intended as a vindica-
tion of the court’s dignity, is a criminal contempt.
Gompers v. Bucks Stove & Range Co., 221 U.S. 418. But
it is obvious that the flouting of the court’s decree is as
much a public offence in the one case as in the other, and
as destructive of the court’s dignity, power and efficiency
(if allowed to go unpunished) and of the rights of parties
litigant. Indeed, it has been said in substance by this
Court, and it iz obviously true, that all violations of court
orders are both civil and criminal contempts, because all

EX PARTE GROSSMAN. 95
87 Argument for Respondent.

proceedings for punishment (whichever aspect domi-
nates) are both civil and criminal, in the sense in which
the terms are used in the classification; that is to say, all
such proceedings, however classified, tend to enforce the
property rights of the parties litigant, and also tend to
vindicate the dignity of the court, and protect the public
respect which is essential to its existence. Gompers v.
Bucks Stove & Range Co., supra; Bessette v. Conkey Co.
194 U.S. 324. See Gompers v. Bucks Stove & Range Co.,
221 U. S. 418; People v. Peters, 305 Ill. 223. °

The Constitution and its Amendments in different pro-
visions treat of “ offences against the United States,” of
“ offences,” of “crimes” and of “ criminal prosecutions.”
Those terms were doubtless used interchangeably. They
have always been regarded as substantially synonymous.
No reason can be assigned for the use of the one rather
than another in any Article of the Constitution. It is
impossible to argue that these different terms were used
with differeat ideas in view. These terms are used in six
different Articles of the Constitution. It is impressive,
we submit, that no one of the six has ever been held to
embrace contempts of court.

First. In Article II, § 2, cl. 1, appear the words here in
controversy.

Second. Article III, § 2, cl. 3, provides that “ The trial
of all Crimes except in Cases of Impeachment shall be by
Jury; and such Trial shall be held in the State where the
said Crimes shall have been committed * * *.”

Since the foundation of our government, at least, it has
been universally held that trials of contempts of court
need not be, (and until the enactment of the Clayton Act
that they could not be) by jury. It is true that in the
second Gompers Case 233 U. S. 604 the opinion said that
contempts of court, even though crimes, need not, under
the Constitution, be tried by jury, because they were not
so triable when the Constitution was framed. This, how-

96 OCTOBER TERM, 1924.
Argument for Respondent. 267 U.S.

ever, we respectfully submit, would be giving the Consti-
tution a somewhat strained construction, making it read:
“ The trial of all crimes, except in cases of impeachment,
and except in cases now otherwise triable, shall be by
jury.” And since this Court has held that those almost
identical words of the Sixth Amendment do not require a
trial for contempt to be held in the district of its commis-
sion for the reason that a proceeding for contempt is not
a criminal prosecution, we can see no ground for not ap-
plying the same reasoning to clause 3 of § 2 of Art. III
and thus reaching the same conclusion (that jury trials
are not required) without doing violence to the language.
That this is the correct reason for the conclusion would
seem to follow necessarily from a consideration of the
second sentence of clause 3. That a contempt trial need
not be held in the State where the contempt was com-
mitted would seem to be settled. Myers v. United States
264 U.S. 95. The sole reason is that a contempt trial is
not a trial for a crime. In re Terry, 37 Fed. 649.

Third. Article IV, § 2, cl. 2, of the Constitution reads:
“A person charged in any State with Treason, Felony or
other Crime, who shall flee from Justice, and be found in
another State, shall on demand of the executive Authority
of the State from which he fled be delivered up to be re-
moved to the State having Jurisdiction of the crime.” A
careful search has disclosed no case holding that contempt
of court is or is not extraditable. We venture the sugges-
tion that by common understanding it is not.

Fourth. The second provision of the Fifth Amendment
reads: “nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness
against himself * * *.”

- That punishment as for contempt of court of an act
which is also a crime is no bar to a criminal prosecution,
is well settled law. See Jn re Debs, 158 U. S. 564; In re

EX PARTE GROSSMAN. 97
87 Argument for Respondent.

Chapman, 166 U. S. 661. Grain Company v. Board of
Trade, 201 Fed. 20.

Fifth. The Sixth Amendment directs that: “In all
criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been com-
mitted,” ete.

It will be noted that the first sentence of this amend-
ment uses the terms “ criminal prosecutions ” and “crime.”
It is impossible to argue that one of those terms was in-
tended to be either broader or narrower than the other. It
was held by this Court in Myers v. United States, supra,
that “since the foundation of our government, proceed-
ings to punish such offences (contempts of court) have
been regarded as sui generis and not “ criminal prosecu-
tions within the Sixth Amendment, or common under-
standing.” See Binkley v. United States, 282 Fed. 244;
McCourtney v. United States, 291 Fed. 497 ; Ex Parte
Terry, 128 U. 8. 289; Middlebrook v. The State, 43 Conn.
257.

Sizth. The Thirteenth Amendment reads: “Neither
slavery nor involuntary servitude, except as a punishment
for crime whereof the party shall have been duly con-
victed, shall exist within the United States, or any place
subject to their jurisdiction.” Flannagan v. Jepson,
(Iowa) 158 N. W. 641 held that imprisonment alone is
not servitude; that hard labor is infamous punishment,
and as such cannot be imposed for contempt under the
Thirteenth Amendment. See Jn re Filki, 80 Cal. 201.

From a study of the records of the Constitutional Con-
vention, and of the various ratifying conventions, it seems
clear that neither the framers of the Constitution nor
those who subsequently put it into operation ever thought
of contempt of court in connection with the power of
pardon granted to the President.

42684°—25-——-7

EX PARTE IN THE MATTER OF PHILIP GROSS-
MAN, PETITIONER.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR
THE NORTHERN DISTRICT OF ILLINOIS.

No. 24, Original. Argued December 1, 1924.—Decided March 2, 1925.
1. A criminal contempt, committed by disobedience of an injunction

issued by the District Court to abate a nuisance in pursuance of

98 OCTOBER TERM, 1924.
Argument for Respondent. 267 U.S.

Though the clause was liberally debated in the Con-
stitutional Convention, contempts of court were never
referred to.

A search of the records of the ratifying conventions,
and of the various addresses to the Virginia Convention,
fails to disclose that contempts of court were ever touched
upon.

The contemporary publications concerning the Consti-
tution between the time of its adoption by the convention
and its subsequent ratification, so far as we have been able
to ascertain, do not disclose that the subject was ever
mentioned.

Furthermore, the record of the Constitutional Conven-
tion relating to this pardon provision is confirmatory of
the views here expressed.

The pardoning power of the executive cannot be con-
strued to cover contempts of court without encroaching
upon the judicial power of the United States, which by
the Constitution is vested in the federal courts,

The power to punish for contempt and thereby compel
respect for its decrees is an inherent power of the federal
courts. It isan essential part of judicial power. Michael-
son v. United States, 266 U. 8. 42; Anderson v. Dunn, 6
Wheat. 204; Ex parte Terry, 128 U.S. 289; Eilenbecker v.
Dist. Court, 134 U. S. 31; Cartwright’s Case, 114 Mass.
230; Interstate Commerce Commission v. Brimson, 154
U. 8. 447; Cooper’s Case, 32 Vt. 253; In re Debs, 158 U. 8.
564; Watson v. Williams, 36 Miss. 331; Gompers v. Bucks
Stove & Range Co., 221 U. 8. 418; Myers v. United States,
264 U. 8. 95.

The Judiciary—concededly the weakest of the three co-
ordinate departments of government—must not be
obliged to depend on the Executive for the enforcement
of its decrees. Such dependence would violate the princi-
ple of separation of powers upon which our governmental
structure is based.

EX PARTE GROSSMAN. 99
87 Argument for Respondent.

The pardon of a crime furnishes no analogy. Having
sentenced a criminal for violation of a penal statute, the
court’s work is completed. It is not directly concerned
with the execution of the sentence. In the enforcement
of its decrees, however, the court has a continuing interest.
A violation of such decrees is a blow at judicial authority.
The pardon of a criminal is an act of mercy. The pardon
of contempt is a negation of judicial power.

The situation in England is not analogous. There, gov-
ernment is unitarian in form with the King as its nominal
head. In theory at least, and by tradition, it is the
King’s justice which is dispensed. Here, government is
trinitarian, and each of the three departments, legisla-
tive, executive and judicial, is supreme in its sphere. Con-
tempt of an English court is contempt of the English
King. Contempt of a federal court is not contempt of
the President.

Our Judicial Department which checks both President
and Congress, holding them within constitutional bounds,
is without counterpart in England. The duty imposed is
heavy and the responsibility great. The security of the
people in the rights guaranteed them by the Constitution
and against unconstitutional legislation or unwarranted
executive interference is the sole objective. How can it be
possible for this Court to discharge the duty thus imposed,
if it be conceded that a sentence imposed for disobedience
of the orders of this Court, entered, it may be, for the
purpose of controlling a tyrannical Executive, may be by
such Executive immediately nullified? The doctrine of
the separation of powers was early recognized by this
Court. Marbury v. Madison 1 Cranch, 137. See Kil-
bourn v. Thompson, 103 U. S. 168; Evans v. Gore, 253
U. 8S. 245.

Neither opinions of Attorneys General nor acts of the
Executive are determinative (discussing Ex parte Fisk,
113 U.S. 713; The Laura, 114 U. 8. 411; United States v.
Wilson, 7 Pet. 150.)

100 OCTOBER TERM, 1924.
| Argument for Respondent. 267 U.S.

As with opinions of the law department, there is here
no element of contemporaneous construction through par-
dons granted. The earliest instance disclosed occurred
forty years after the Constitution had been adopted.

In the entire list submitted by the Attorney General it
is important to note that in only five cases does it affirma-
tively appear that the pardon issued contrary to the
wishes of the court which had imposed the sentence.

Constitutional power in the Executive may not be
created merely by acquiescence on the part of the courts.
The Judicial Department has not the freedom of action
accorded Congress or the President—the rational basis for
an estoppel in favor of either and against the Judiciary is
therefore lacking. Certainly no estoppel can be claimed
to exist before this Court has been called upon to act (dis-
cussing United States v. Midwest Oil Co. 236 U. S. 459).

Contempt of court may not be pardoned without im-
pairing the powers and functions of the court and lessen-
ing its respect and authority. Toledo Newspaper Co. v.
United States 247 U.S. 402; Craig v. Hecht, 263 U.S. 255.

The power of the federal court to compel respect for a
decree under the Volstead Act is the same power as has
been and should be invoked whenever any decree of that
court is defied.

We know of no reason justifying a denial of the pardon-
ing power for contempt of Congress that does not apply
with equal or greater force to contempts of court. The
power to deal with contempt rests on the right of self-
preservation. Marshall v. Gordon, 243 U.S. 521; Toledo
Newspaper Co. v. United States 247 U. S. 402; Story
Const. Vol. 2, (5th Ed.) § 1503.

Congress has power to regulate and restrict, but not to
destroy, the power of the courts in contempt cases. It
may provide for the amelioration of punishments imposed
for contempt. Such congressional control is fiexible and
useful. This flexibility and usefulness will be destroyed

EX PARTE GROSSMAN. 101
87 Argument of the Attorney General.

if the pardoning power of the President is enlarged by
construction to include contempts. Ez parte Robinson,
19 Wall. 505; The Laura, 114 U, S. 411; United States v.
Daniels, 279 Fed. 844.

Mr. Attorney General Stone, as amicus curiae. Mr.
Solicitor General Beck and Mr. Robert P. Reeder, Special
Assistant to the Attorney General, were also on the brief.

I. The offense for which the petitioner was committed
was @ criminal contempt; Gompers v. Bucks Stove &
Range Co., 221 U. 8. 418; Michaelson v. United States,
266 U.S. 42; and the more clearly so because under the
National Prohibition Act the fine necessarily accrued to
the United States.

II. Criminal contempts are offenses against the United
States within the meaning of the Pardon Clause of the
Constitution.
as an offense criminal in its nature. Michaelson v. United
States 266 U. 8. 42; Toledo Newspaper Co. v. United
States, 247 U. S. 402; Gompers v. United States, 233 U.S.
604; New Orleans v. Steamship Co., 20 Wall. 387; Ez
parte Kearney, 7 Wheat. 38. See also Bessette v. Conkey
Co., 194 U. S. 324; Pino v. United States, 278 Fed. 479;
United States v. Berry, 24 Fed. 780; In re Litchfield, 13
Fed. 863; In re Ellerbe, 13 Fed. 530; United States v.
Jacobi, Fed. Cas. No. 15460; Fanshawe v. Tracy, Fed Cas.
No. 4643. And it is so treated throughout the United
States. See e. g., Sharp v. State, 102 Tenn. 9; State v.
Dent, 29 Kan. 416; In re Buckley, 69 Cal. 1; Williamson's
Case, 26 Pa. St.-9; 13 Corpus Juris, 7.

See the notable series of essays in the Law Quarterly
Review: 24 Law Quar. Rev. 184, 266 (1908) ; 25 id. 238,
354 (1909) ; 36 id. 394 (1920) ; 37 id. 191 (1921); 38 id.
185 (1922) ; 40 id. 43 (1924) ; especially 40 id. 54, 57, 60.
These are summarized in the Harvard Law Review for
June, 1924.

102 OCTOBER TERM, 1924.
Argument of the Attorney General. 267 U.S.

It is true that the court has said that criminal con-
tempts are sui generis and proceedings for their punish-
ment are not “ criminal prosecutions.” Myers v. United
States, 264 U. S. 95; but, nevertheless, they constitute
offenses against the United States. State v. Magee Pub-
lishing Co., 29 N. M. 455, 224 Pac. 1028.

Punishment for contempt of court is not imposed out
of any personal consideration for the judge, but only to
uphold the authority and dignity of the law. While an
injured party may condone a disobedience of judicial or-
ders in a civil suit, a court may not condone a criminal
contempt, for it constitutes an offense, not against the
judge, but against the Government. Jn re Rice, 181 Fed.
217; State v. Sauvinet, 24 La. Ann. 119; Ex parte H.ckey,
12 Miss. 751; State v. Magee Publishing Co., supra;
Sharp v. State, 102 Tenn. 9. See also In re Ellerbe, 13
Fed. 530; In re Mason, 43 Fed. 510; Fanshawe v. Tracy,
Fed. Cas. No. 4643, 8 Fed. Cas. 997; 13 Corpus Juris, 97.

III. The history of the power to pardon for criminal
contempts establishes that, by the grant of the pardon-
ing power to the President by the Constitution, it was
intended to embrace criminal contempts in the phrase
“ offences against the United States.”

Except as to cases of treason, there was no substantial
objection to the grant of pardoning power. In cases of
impeachment the restraint upon the power was made
greater than in England. In all other respects the power
to pardon offenses against the Government was, as in
England, unlimited, and the propriety of this broad grant
of power was unquestioned.

In England contempts of court were ‘within the par-
doning power of the Crown. The case most frequently
cited is that of Rex v. Buckenham (1665, 1666) 1 Siderfin,
211, 1 Keble, 751, 787, 852. The pardoning power of the
King was also recognized in numerous other cases involv-
ing contempts of court. Anonymous (1674) Cases in

EX PARTE GROSSMAN. 103
87 Argument of the Attorney General.

Chancery, 238; Fulwood v. Fulwood (1584-5) Tothill, 46;
King and Codrington vy. Rodman (1631) Cro. Car. 198,
W. Jones, 228; Bartram v. Dannett (1676) Finch, 253;
Phipps v. Earl of Anglesea (1721), 1 P. Williams, 696;
Bishop’s New Criminal Law, Sec. 913. Thomas of Char-
tham v. Benet of Stamford (1313-1314) 24 Selden Soci-
ety, 185, is also apparently in point.

At one time this power of pardoning contempts ex-
tended even to civil contempts (Young v. Chamberlaine,
Tothill, 41); and as even such a contempt as nonper-
formance of an order in bankruptcy was treated as breach
of the peace (Ex parte Whitchurch (1749) 1 Atk. 37 )
it could have been pardoned. Before the adoption of our
Constitution, however, civil contempts had been distin-
guished from criminal contempts. King v. Myers (1786)
1 Term, 265. Blackstone pointed out (IV, 285) that
where contempts and the process thereon were properly
the civil remedy of individuals for private injury they
were not released or affected by the general act of pardon.
Glanville had said (book 7, chap. 17, last sentence) :
“The King, indeed, is accustomed to remit the pains of
forfeiture and outlawry, yet can not he, under color of
this prerogative, infringe upon the rights of others.” The
rule as to civil contempts was apparently an exception to
an earlier rule under which all contempts were par-
donable. See Hawkins, Pleas of the Crown, 6th ed. pub-
lished in 1787, IT, 549, 553; Blackstone Comm., IV, 398,
399.

Where a pardon was granted to one who had been con-
victed and fined for maintaining a nuisance, he was not
discharged from abatement of the nuisance, for that was
a grievance to other persons, but he was discharged from
the fine, which was simply a punishment of the offender.
Rex & Regina vy. Wilcox, 2 Salkeld, 458.

The pardoning power has substantially the same scope
as it had in England when the Constitution was adopted.
Ez parte Wells, 18 How. 307.

104 OCTOBER TERM, 1924.
Argument of the Attorney General. 267 U.S.

The President may pardon all offenses against the
United States except in cases of impeachment. Fz parte
Garland, 4 Wall. 333.

IV. The power of the President to pardon criminal con-
tempts of court has been repeatedly exercised and has
never been challenged heretofore. 2 Op. A. G. 329; 3
Id. 622; 4 Id. 317; 4 Id. 458; 19 Id. 476. Unreported
opinions of Attorney General Knox in the McKenzie
Case (May 1, 1901) and of Attorney General Daugherty
in the Craig Case (Dec. 3, 1923).

Records of the Department of Justice prove that in
twenty-seven cases of criminal contempt in addition to
these cited the President has pardoned; and probably
there have been many others.

The circumstances attending the granting of the pardon
have not been uniform. In some cases the records do
not show that the judge who imposed the sentence was
consulted; in some the judge recommended pardon; in
some he refused to make such a recommendation; in two
of the cases the Attorney General advised that the pardon
be denied. So far as shown by the records and files of
the Department of Justice, however, there has not been
@ single case of criminal contempt of a federal court from
the establishment of the Government down to the case
now in isue in which any judge or any Attorney General
has questioned the power of the President to pardon the

stances; and it has been expressly or impliedly recog-
nized by every Attorney General and every judge who
has considered the question in a concrete case.

V. The weight of authority in cases directly involving
pardons for contempt of court supports the power of the
President to grant this pardon. 4

Federal judges who had sentenced persons to punish-
ment for contempt of court have in repeated instances
recommended the pardoning of those offenders by the

EX PARTE GROSSMAN. : 105
87 Argument of the Attorney General.

President. One of the judges who did so was Associate
Justice McKinley of this Court, 3 Op. A. G. 622.

Another judge who took a similar view of the power of
the President was District Judge Blatchford. In re Mul-
lee, 7 Blatch. 23, 17 Fed. Cas. 968. Unfortunately he
went too far in failing to recognize that where a fine is
imposed not by way of punishment but for the benefit of
a private party to whom it is to be paid, the rule as to
the pardoning of offenses against the United States does
not apply. See Hendryz v. Fitzpatrick, 19 Fed. 810.

See Ex parte Hickey, 12 Miss. 751; State ex rel. Van
Orden v. Sauvinet, 24 La. Ann. 119; Sharp v. State, 102
Tenn. 9.

Of course, the President of the United States does not
stand in the same relation to the courts of this country
as existed between the King of England and his own
courts except in so far as that relation was created by our
Constitution. But the Constitution does contain an ex-
press grant of pardoning power to the President, and this
court has said that the words of that grant are to be inter-
preted as they were understood when they were placed in
the Constitution, as giving to the President the same
power to grant pardons as had been possessed by the King
of England.

The proposition (In re Nevitt, 117 Fed. 448) that the
judicial power of the United States was granted in its
entirety, free from executive control or supervision is
untrue; it would exclude all pardoning power whatever.

The President would not be drawing to himself all the
real judicial power by a free exercise of the right to pardon
offenses any more than he would be drawing to himself
all the legislative power by freely pardoning violators
of the criminal laws. He would not be exercising any
affirmative judicial or legislative power in either case, and
he could not exercise such power.

The fair question is, rather, whether he may thwart the
exercise of judicial power to punish offenders against the

106 OCTOBER TERM, 1924.
Argument of the Attorney General. 267 U.S.

Government by granting pardons. The answer is that
the Constitution does establish a system of checks and
that the pardoning power does furnish a potential check
upon some judicial actions. If the President abuses this
power he may be impeached. It is, however, no more in-
herently unreasonable that the President should have the
power to pardon criminal contempts than that he should
have the power to pardon treason.

It is true that a trial for criminal contempt is sui gen-
erig; it is true that it has been held that our Constitution
does not give to the person accused of criminal contempt
all of the protection that is given to a person accused of
a typical crime; but whether the trial is before a jury
or not, the punishment is for an offense, and that offense
is really against the Government. Gompers v. United
States, 233 U. S. 604. Moreover, it could not properly
be said in the Verage Case, 177 Wisc. 295, nor in the
present case, that the prisoner “interfered with the
proper function of an independent branch of govern-
ment.” He did not commit “an offense which tends to
frustrate the administration of justice and to interfere
with the operation of the courts.” His offense was simply
a disobedience of a valid order of the court just as the
ordinary crime is a disobedience of a valid law.

Courts have recognized that a criminal contempt can
not be condoned by the court (In re Rice, 181 Fed. 217);
that sentence can not be suspended indefinitely (Ez parte
United States, 242 U. S. 27); and that “in the absence
of statute providing otherwise, the general principle ob-
tains that a court can not set aside or alter its final judg-
ment after the expiration of the term at which it was
entered, unless the proceeding for that purpose was be-
gun during that term.” United States v. Mayer, 235
U. S. 55, 67. The power to grant pardons has been
entrusted to the President and has not neon entrusted
to the courts,

EX PARTE GROSSMAN,
87 Opinion of the Court.

Mr. Francis M. Curlee and Mr. Charles M. Hay, by
leave of Court, filed a brief as amici curiae.

Mr. Cuter Justice Tarr delivered the opinion of the
Court.

This is an original petition in this Court for a writ of
habeas corpus by Philip Grossman against Ritchie V.
Graham, Superintendent of the Chicago House of Correc-
tion, Cook County, Illinois. The respondent has an-
swered the rule to show cause. The facts are not in
dispute.

On November 24, 1920, the United States filed a bill in
equity against Philip Grossman in the District Court of
the United States for the Northern District of Illinois,
under Section 22 of the National Prohibition Act (Ch. 85,
41 Stat. 305, 314), averring that Grossman was maintain-
ing @ nuisance at his place of business in Chicago by sales
of liquor in violation of the Act and asking an injunction
to abate the same. Two days later the District Judge
granted a temporary order. January 11, 1921, an infor-
mation was filed against Grossman, charging that, after
the restraining order had been served on him, he had sold
to several persons liquor to be drunk on his premises.
He was arrested, tried, found guilty of contempt and sen-
tenced to imprisonment in the Chicago House of Correc-
tion for one year and to pay a fine of $1,000 to the United
States and costs. The decree was affirmed by the Circuit
Court of Appeals, 280 Fed. 683. In December, 1923, the
President issued a pardon in which he commuted the sen-
tence of Grossman to the fine of $1,000 on condition that
the fine be paid. The pardon was accepted, the fine was
paid and the defendant was released. In May, 1924,
however, the District Court committed Grossman to the
Chicago House of Correction to serve the sentence not-
withstanding the pardon. 1 Fed. (2d) 941. The only

108 OCTOBER TERM, 1924.
Opinion of the Court. 267 U.S.

question raised by the pleadings herein is that of the
power of the President to grant the pardon.

Special counsel, employed by the Department of Jus-
tice, appear for the respondent to uphold the legality of
the detention. The Attorney General of the United
States, as amicus curiae, maintains the validity and effec-
tiveness of the President’s action. The petitioner, by his
counsel, urges his discharge from imprisonment.

Article II, Section 2, clause one, of the Constitution,
dealing with the powers and duties of the President,
closes with these words:

_? and he shall have power to grant Reprieves and
Pardons for Offences against the United States, except
in Cases of Impeachment.”

The argument for the respondent is that the President’s
power extends only to offenses against the United States
and a contempt of Court is not such an offense, that
offenses against the United States are not common law
offenses but can only be created by legislative act, that
the President’s pardoning power is more limited than that
of the King of England at common law, which was a
broad prerogative and included contempts against his
courts chiefly because the judges thereof were his agents
and acted in his name; that the context of the Consti-
tution shows that the word “ offences” is used in that
instrument only to include crimes and misdemeanors
triable by jury and not contempts of the dignity and
authority of the federal courts, and that to construe the
pardon clause to include contempts of court would be to
violate the fundamental principle of the Constitution in
the division of powers between the Legislative, Executive
and Judicial branches, and to take from the federal courts
their independence and the essential means of protecting
their dignity and authority.

The language of the Constitution cannot be interpreted
safely except by reference to the common law and to

EX PARTE GROSSMAN. 109
87 Opinion of the Court.

British institutions as they were when the instrument
was framed and adopted. The statesmen and lawyers of
‘the Convention who submitted it to the ratification of .
the Conventions of the thirteen States, were born and
brought up in the atmosphere of the coramon law, and
thought and spoke in its vocabulary. They were familiar
with other forms of government, recent and ancient, and
indicated in their discussions earnest study and considera-
tion of many of them, but when they came to put their
conclusions into the form of fundamental law in a com-
pact draft, they expressed them in terms of the common
law, confident that they could be shortly and easily under-
stood.

In a case presenting the question whether a pardon
should be pleaded in bar to be effective, Chief Justice
Marshall said of the power of pardon (United States v.
Wilson, 7 Peters, 150, 160):

“As this power had been exercised, from time imme-
morial, by the executive of that nation whose language
is our language, and to whose judicial institutions ours
bear a close resemblance; we adopt their principles re-
specting the operation and effect of a pardon, and look
into taeir books for the rules prescribing the manner in
which it is to be used by the person who would avail him-
self of it.”

In Ex parte William Wells, 18 Howard, 307; 311, the
question was whether the President under his power to
pardon could commute a death sentence to life imprison-
ment by granting a pardon of the capital punishment on
condition that the convict be imprisoned during his net-
ural life. This Court, speaking through Mr. Justice
Wayne, after quoting the above language of the Chief
Justice, said: -

“We still think so, and that the language used in the
Constitution, conferring the power to grant reprieves and
pardons, must be construed with reference to its meaning

110 OCTOBER TERM, 1924.
Opinion of the Court. 267 U.S.

at the time of its adoption. At the time of our separation
from Great Britain, that power had been exercised by the
- King, as the chief executive. Prior to the Revolution, the
Colonies, being in effect under the laws of England, were
accustomed to the exercise of it in the various forms, as
they may be found in the English law books. They were,
of course, to be applied as occasions occurred, and they
constituted a part of the jurisprudence of Anglo-America.
At the time of the adoption of the Constitution, American
statesmen were conversant with the laws of England and
familiar with the prerogatives exercised by the crown.
Hence, when the words to grant pardons were used in the
Constitution, they conveyed to the mind the authority as
exercised by the English crown, or by its representatives
in the colonies. At that time both Englishmen and
Americans attached the same meaning to the word pardon.
In the convention which framed the Constitution, no
effort was made to define or change its meaning, although
it was limited in cases of impeachment.”

The King of England before our Revolution, in the
exercise of his prerogative, had always exercised the power
to pardon contempts of court, just as he did ordinary
crimes and misdemeanors and as he has done to the pres-
ent day. In the mind of a common law lawyer of the
eighteenth century the word pardon included within its
scope the ending by the King’s grace of the punishment
of such derelictions, whether it was imposed by the court
without a jury or upon indictment, for both forms of
trial for contempts were had. Thomas of Chartham v.
Benet of Stamford (1313), 24 Selden Society, 185; Ful-
wood v. Fulwood (1585), Toothill, 46; Rez v. Buckenham
(1665), 1 Keble 751, 787, 852; Anonymous (1674), Cases
in Chancery, 238; King and Codrington v. Rodman
(1630), Cro. Car. 198; Bartram v. Dannett (1676), Finch,
253; Phipps v. Earl of Angelsea (1721), 1 Peere Williams,
696.

EX PARTE GROSSMAN. 111
87 Opinion of the Court.

These cases also show that, long before our Constitu-
tion, a distinction had been recognized at common law
between the effect of the King’s pardon to wipe out the
effect of a sentence for contempt in so far as it had been
imposed to punish the contemnor for violating the dignity
of the court and the King, in the public interest, and its
inefficacy to halt or interfere with the remedial part of
the court’s order necessary to secure the rights of the
injured suitor. Blackstone IV , 285, 397, 398; Hawkins
Pleas of the Crown, 6th Ed. (1787), Vol. 2, 553. The
same distinction, nowadays referred to as the difference
between civil and criminal contempts, is still maintained
in English law. In the Matter of a Special Reference
from Bahama Islands, Appeal Cases [1893], 1388; Welles-
ley v. Duke of Beaufort, 2 Russell & Mylne, 639, 667,
(where it is shown in the effect of a privilege from arrest
of members of Parliament analogous in its operation to
a pardon) ; In re Freston, 11 Q. B. D. 545, 552; Queen v.
Barnardo, 23 Q. B. D. 305; O’Shea v. O’Shea and Parnell,
15 P. & D. 59, 62, 63, 65; Lord Chancellor Selborne in
the House of Lords, 276 Hansard, 1714, commenting on
Greene’s Case, 6 Appeal Cases, 657.

In our own law the same distinction clearly appears.
Gompers v. Bucks Stove & Range Company, 221 U. S.
418; Doyle v. London Guarantee Company, 204 U. S.
599, 607; Bessette v. Conkey Co., 194 U. S. 324; Aleaander
v. United States, 201 U.S. 117 ; Union Tool Co. v. Wilson,
259 U. S. 107, 109. In the Gompers Case this Court
points out that it is not the fact of punishment but rather
its character and purpose that makes the difference be-
tween the two kinds of contempts. For civil contempts,
the punishment is remédial and for the benefit of the
complainant, and a pardon cannot stop it. For criminal
contempts the sentence is punitive in the public interest
to vindicate the authority of the court and to deter other
like derelictions.

112 OCTOBER TERM, 1924.
Opinion of the Court. 267 U.S.

With this authoritative background of the common law
and English history before the American Revolution to
show that criminal contempts were within the under-
stood scope of the pardoning power of the Executive, we
come now to the history of the clause in the Constitu-
tional Convention of 1787. The proceedings of the Con-
vention from June 19, 1787 to Juiy 23rd, were by resolu-
tion referred to a Committee on Detail for report of the
Constitution (II Farrand’s Records of Constitutional
Convention, 128, 129) and contained the following (II
Farrand, 146): “The power of pardoning vested in the
Executive (which) his pardon shall not, however, be
pleadable to an impeachment.” On August 6th, Mr.
Rutledge of the Committee on Detail (II Farrand, 185)
reported the provision as follows: “ He shall have power
to grant reprieves and pardons; but his pardon shall not
be pleadable in bar of impeachment.” This is exactly
what the King’s pardon was at common law with the same
limitation. IV Blackstone, 399. On August 25th (II
Farrand, 411), the words “except in cases of impeach-
ment” were added after “pardons” and the succeeding
words were stricken out. On Saturday, September 8th
(II Farrand, 547), a committee of five to revise the style
of and arrange the articles was agreed to by the House.
As referred to the Committee on Style, the clause read
(II Farrand, 575): “He shall have power to grant re-
prieves and pardons except in cases of impeachment.”
The Committee on Style reported this clause as it now is:
“and he shall have power to grant reprieves and pardons
for offences against the United States except in cases of
_ impeachment.” There seems to have been no discussion

over the substance of the clause save that a motion to
except cases of treason was referred to the Committee on
Style, September 10th (II Farrand, 564), was not ap-
proved by the Committee and after discussion was de-
feated in the Convention September 15th (II Farrand,
626, 627).

EX PARTE GROSSMAN. ~ 113
87 Opinion of the Court. .

We have given the history of the clause to show that
the words “ for offences against the United States” were
inserted by a Committee on Style, presumably to make
clear that the pardon of the President was to operate upon
offenses against the United States as distinguished from
offenses against the States. It can not be supposed that
the Committee on Revision by adding these words, or
the Convention by accepting them, intended sub silentio
.to narrow the scope of a pardon from one at common
law or to confer any different power in this regard on our
Executive from that which the members of the Conven-
tion had seen exercised’before the Revolution.

Nor is there any substance in the contention that there
is any substantial difference in this matter between the
executive power of pardon in our Government and the
King’s prerogative. The courts of Great Britain were
called the King’s Courts, as indeed they were; but for
years before our Constitution they were as independent
of the King’s interference as they are today. The extent
of the King’s pardon was clearly circumscribed by law
and the British Constitution, as the cases cited above
show. The framers of our Constitution had in mind no
necessity for curtailing this feature of the King’s preroga-
tive in transplanting it into the American governmental
structures, save by excepting cases of impeachment; and
even in that regard, as already pointed out, the common
law forbade the pleading a pardon in bar to an impeach-

42684°—25-—-—8 j

114 OCTOBER TERM, 1924.
Opinion of the Court. 267 U.S.

meanors defined and denounced by Congressional Act,
because of the decision of this Court in United States v.
Hudson, 7 Cranch, 32. This was a criminal case certi-
fied from the District Court upon a demurrer to an indict-
ment for criminal libel at common law. The Court sus-
tained the demurrer, on the ground that indictments in
federal courts could only be brought for statutory offenses.
The reasoning of the Court was that the inferior courts
of the United States must be created by Congress, that
their jurisdiction, though limited by the Constitution,
was in its nature very indefinite, applicable to a great
' variety of subjects, varying in every State in the Union,
so that the courts could not assume to exercise it without
legislative definition. -The legislative authority of the
Union must first make an act a crime, affix a punishment
to it and declare the court that shall have jurisdiction of
the offense. The Court admitted that “certain implied
powers must necessarily result to our courts of justice
from the nature of their institution. But jurisdiction of
crimes against the state is not among those powers.
To fine for contempt—imprison for contumacy—enforce
the observance of order, etc., are powers which can not be
dispensed with in a court because they are necessary to
the exercise of all the others and so far our courts no
doubt possess powers not immediately derived from stat-
ute; but all exercise of criminal jurisdiction in common
law cases we are of opinion is not within their implied
powers.” The decision was by a majority of the Court
and among the dissenting members was Mr. Justice Story,
who expressed himself with vigor to the contrary in
United States v. Coolidge, 1 Gall. 488; Fed. Case No.
14,857, which was reversed by a majority of the Court
in 1 Wheat. 415. The Hudson decision was made in 1812.
It is not too much to say that, immediately after the rati-
fication of the Constitution, the power and jurisdiction
of federal courts to indict and prosecute common law

EX PARTE GROSSMAN. 115
87 Opinion of the Court.

crimes within the scope of federal judicial power was
thought to exist by most of the then members of
Court. The charge of Chief Justice Jay to the

Jury in the United States Circuit Court at Richmond in

116 OCTOBER TERM, 1924.
Opinion of the Court. 267 U.S.

Gompers v. United States, 233 U. S. 604. In that case
this Court said (p. 610):

“It is urged in the first place that contempts can not
be crimes, because, although punishable by imprisonment
and therefore, if crimes, infamous, they are not within the
protection of the Constitution and the amendments giv-
ing a right to trial by jury &c. to persons charged with
such crimes. But the provisions of the Constitution are
not mathematical formulas having their essence in their
form; they are organic living institutions transplanted
from English soil. Their significance is vital not formal;
it is to be gathered not simply by taking the words and
a dictionary, but by considering their origin and the line
of their growth. Robertson v. Baldwin, 165 U. S. 275,
281, 282. It does not follow that contempts of the class
under consideration are not crimes, or rather, in the lan-
guage of the statute, offenses, because trial by jury as it
has been gradually worked out and fought out has been
thought not to extend to them as a matter of constitu-
tional right. These contempts are infractions of the law,
visited with punishment as such. If such acts are not
criminal, we are in error as to the most fundamental
characteristic of crimes as that word has been understood
in English speech. So truly are they crimes that it seems
to be proved that in the early law they were punished
only by the usual criminal procedure, 3 Transactions of
the Royal Historical Society, N. 8. p. 147 (1885), and that
at least in England it seems that they still may be and
preferably are tried in that way. See 7 Halsbury, Laws
of England, 280, sub. v. Contempt of Court (604); Re
Clements v. Erlanger, 46 L. J., N.8., pp. 375, 383. Mat-
ter of Macleod, 6 Jur. 461. Schreiber v. Lateward, 2
Dick. 592. Wellesley’s Case, 2 Russ. & M. 639, 667. In
re Pollard, L. R. 2 P. C. 106, 120. Hx parte Kearney,
7 Wheat. 38,43. Bessette v. W. B. Conkey Co., 194 U. 8.
324, 328, 331, 332. Gompers v. Bucks Stove & Range
Co., 221 U. 8, 418, 441.”

EX PARTE GROSSMAN. 117
87 Opinion of the Court.

The recent case of Michaelson v. United States fully
bears out the same view. 266 U. S. 42, 66, 67.
_ It is said, however, that whatever may be the scope of

the word “ offenses” in the particular statute construed in
the Gompers Case, its association in the Constitution is
such as to show a narrower meaning. The word “of-
fences” is only used twice in the original Constitution,
once in the pardon clause, and once in Article I, Section
8, among the powers of Congress “ to define and punish
Piracies and Felonies committed on the high seas and
offences against the Law of Nations.” In the amend-
ments, “offence” occurs but once and that in the Fifth
Amendment in the clause forbidding double jeopardy.
We do not see how these other two uses of the word can
be said to limit the meaning of “ offences” in the pardon
clause.

The argument is that the word “ offences” is used in
. the Constitution interchangeably with crimes and crimi-
nal prosecutions. But.as has been pointed out in Shick
v. United States, 195 U. 8. 65, the term “ offences” is
used in the Constitution in a more comprehensive sense
than are the terms “crimes” and “criminal prosecu-
tions.” In Myers v. United States, 264 U. 8. 95, 104, 105,
we have but recently held that “ while contempt may be
an offense against the law and subject to appropriate
punishment, certain it is that since the foundation of
our Government proceedings to punish such offenses have
been regarded as sui generis and not criminal prosecutions
within the Sixth Amendment or common understanding.”
Bessette v. Conkey Co., 194 U. 8. 324, 326. Contempt
proceedings are sui generis because they are not hedged
about with all the safeguards provided in the bill of
rights for protecting one accused of ordinary crime from
the danger of unjust conviction. This is due, of course,
to the fact that for years before the American Constitu-
tion, courts had been held to be inherently empowered

118 OCTOBER TERM, 1924.
Opinion of the Court. 267 U.S.

to protect themselves and the function they perform by
summary proceeding without a jury to punish disobedi-
ence of their orders and disturbance of their hearings.
So it is clear to us that the language of the Fifth and
Sixth Amendments and of other cited parts of the Consti-
tution are not of significance in determining the scope of
pardons of “ offences against the United States” in Arti-
cle II, Section 2, clause 1, of the enumerated powers of
the President. We think the arguments drawn from the
common law, from the power of the King under the
British Constitution, which plainly was the prototype of
this clause, from the legislative history of the clause in
the Convention, and from the ordinary meaning of its
words, are much more relevant and convincing.
Moreover, criminal contempts of a federal court have
been pardoned for eighty-five years. In that time the
power has been exercised twenty-seven times. In 1830,
Attorney General Berrien, in an opinion on a state of
fact which did not involve the pardon of a contempt,
expressed merely in p&ssing the view that the pardoning
power did not include impeachments or contempts, using
Rawle’s general words from his work on the Constitution.
Examination shows that the author’s exception of con-
tempts had reference only to contempts of a House of
Congress. In 1841, Attorney General Gilpin approved
the pardon of a contempt on the ground that the princi-
ples of the common law embraced such a case and this
Court had held that we should follow them as to pardons.
(3 Op. A. G. 622.) Attorney General Nelson in 1844
(4 Op. A. G. 317), Attorney General Mason in 1845 (4
Op. A. G. 458), and Attorney General Miller in 1890

A.
(19 Op. A. G. 476), rendered similar opinions. Similar
views were expressed, though the opinions were not re-
ported, by Attorney General Knox in 1901 and by Attor-
ney General Daugherty in 1923. Such long practice
under the pardoning power and acquiescence in it strongly

EX PARTE GROSSMAN. 119
87 Opinion of the Court.

sustains the construction it is based on. Stuart v. Laird,
1 Cranch, 299, 308; Cooley v. Board of Wardens, 12
How. 299, 315; Lithographic Company v. Sarony, 111
U. 8. 58, 57; The Laura, 114 U. §. 411, 416.

Finally, it is urged that criminal contempts should not
be held within the pardoning power because it will tend
to destroy the independence of the judiciary and violate
the primary constitutional principle of a separation of the
legislative, executive and judicial powers. This argument
influenced the two district judges below. (1 Fed. (2d)
941.) The Circuit Court of Appeals of the Eighth Circuit
sustained it in a discussion, though not necessary to the
case, in In re Nevitt, 117 Fed. 448. The Supreme Court
of Wisconsin by a majority upheld it in State ez rel. Rodd
v. Verage, 177 Wis., 295, in remarks which were also
obiter. Taylor v. Goodrich, 25 Texas Civil App., 109, is
the only direct authority, and that deals with a clause a
little differently worded. The opposite conclusion was
reached in Jn re Mullee, 7 Blatchford, 23; Ez parte
Hickey, 12 Miss. 751; Louisiana v. Sauvinet, 24 La. Ann.
119; Sharp v. State, 102 Tenn. 9; State v. Magee Publish-
ing Company, 29 New Mexico 455.

The Federal Constitution nowhere expressly declares
that the three branches of the Government shall be kept
separate and independent. All legislative powers are
vested in a Congress. The executive power is vested in
a President. The judicial power is vested in one Supreme
Court and in such inferior courts as Congress may from
time to time establish. The Judges are given life tenure
and a compensation that may not be diminished during
their continuance in office, with the evident purpose of
securing them and their courts an independence of Con-
gress and the Executive. Complete independence and
separation between the three branches, however, are not
attained, or intended, as other provisions of the Consti-
tution and the normal operation of government under it

120 OCTOBER TERM, 1924.
Opinion of the Court. 267 U.S.

easily demonstrate. By affirmative action through the
veto power, the Executive and one more than one-third
of either House may defeat all legislation. One-half of
the House and two-thirds of the Senate may impeach
and remove the members of the Judiciary. The Execu-
tive can reprieve or pardon all offenses after their com-
mission, either before trial, during trial or after trial, by
individuals, or by classes, conditionally or absolutely, and
this without modification or regulation by Congress. Ez
parte Garland, 4 Wall. 333, 380. Negatively, one House
of Congress can withhold all appropriations and stop the
operations of Government. The Senate can hold up all
appointments, confirmation of which either the Constitu-
tion or a statute requires, and thus deprive the President
of the necessary agents with which he is to take care that
the laws be faithfully executed.

These are some instances of positive and negative re-
straints possibly available under the Constitution to each
branch of the government in defeat of the action of the
other. They show that the independence of each of the
others is qualified and is so subject to exception as not
to constitute a broadly positive injunction or a neces-
sarily controlling rule of construction. The fact is that °
the Judiciary, quite as much as Congress and the Execu-
tive, is dependent on the codperation of the other two,
that government may go on. Indeed, while the Consti-
tution has made the Judiciary as independent of the other
branches as is practicable, it is, as often remarked, the
weakest of the three. It must look for a continuity of
necessary codperation, in the possible reluctance of either
of the other branches, to the force of public opinion.

Executive clemency exists to afford relief from undue
harshness or evident mistake in the operation or enforce-
ment of the criminal law. The administration of justice
by the courts is not necessarily always wise or certainly
considerate of circumstances which may properly mitigate

EX PARTE GROSSMAN. i21
87 Opinion of the Court.

guilt. To afford a remedy, it has always been thought
essential in popular governments, as well as in mon-
archies, to vest in some other authority than the courts
power to ameliorate or avoid particular criminal judg-
ments. It is a check entrusted to the executive for special
cases. To exercise it to the extent of destroying the de-
terrent effect of judicial punishment would be to pervert
it; but whoever is to make it useful must have full dis-
cretion to exercise it. Our Constitution confers this dis-
cretion on the highest officer in the nation in confidence
that he will not abuse it. An abuse in pardoning con-
tempts would certainly embarrass courts, but it is ques-
tionable how much more it would lessen their effective-
ness than a wholesale pardon of other offenses. If we
could conjure up in our minds a President willing to para-
lyze courts by pardoning all criminal contempts, why not
a President ordering a general jail delivery? A pardon
can only be granted for a contempt fully completed.
Neither in this country nor in England can it interfere
with the use of coercive measures to enforce a suitor’s
right. The detrimental effect of excessive pardons’ of
completed contempts would be in the loss of the deterrent
influence upon future contempts. It is of the same char-
acter as that of the excessive pardons of other offenses.
The difference does not justify our reading criminal con-
tempts out of the pardon clause by departing from its
ordinary meaning confirmed by its common law origin and
long years of practice and acquiescence.

If it be said that the President, by successive pardons
of constantly recurring contempts in particular litigation,
might deprive a court of power to enforce its orders in a
recalcitrant neighborhood, it is enough to observe that
such a course is so improbable as to furnish but little
basis for argument. Exceptional cases like this, if to be
imagined at all, would suggest a resort to impeachment
rather than to a narrow and strained construction of the
general powers of the President.

122 OCTOBER TERM, 1924.
Syliabus. 267 U.S.

The power of a court to protect itself and its usefulness
by punishing contemnors is of course necessary, but it is
one exercised without the restraining influence of a jury
and without many of the guaranties which the bill of
rights offers to protect the individual against unjust con-
viction. Is it unreasonable to provide for the possibility
that the personal element may sometimes enter into a
summary judgment pronounced by a judge who thinks
his authority is flouted or denied? May it not be fairly
said that in order to avoid possible mistake, undue preju-
dice or needless severity, the chance of pardon should exist
at least as much in favor of a person convicted by a judge
without a jury as in favor of one convicted in a jury trial?
The pardoning by the President of criminal contempts
has been practiced more than three-quarters of a century,
and no abuses during all that time developed sufficiently
to invoke a test in the federal courts of its validity.

It goes without saying that nowhere is there a more
earnest will to maintain the independence of federal courts
and the preservation of every legitimate safeguard of
their effectiveness afforded by the Constitution than in
this Court. But the qualified independence which they
fortunately enjoy is not likely to be permanently strength-
ened by ignoring precedent and practice and minimizing
the importance of the codrdinating checks and balances
of the Constitution.

The rule is made absolute and the petitioner is dis-
charged.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0154%3A2. Public record. Not legal advice.